MRS. VINCENTIA MENSAH vs. NUMO ADJEI KWANKO II [2015]DLCA4779

Date	2015-03-12
Suit No.	CIVIL APPEAL NO.H1/185/2013
Citation No.	[2015]DLCA4779

MARFUL-SAU JA (PRESIDING)

AGNES DORDZIE JA

MARGARET WELBOURNE JA

KWAME FOSU GYEABOUR FOR THE DEFENDANT/ APPELLANT

GEORGE F. GARDINER FOR THE PLAINTIFF/ RESPONDENT.

[2015]DLCA4779
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >MRS. VINCENTIA MENSAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>NUMO ADJEI KWANKO II<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL
NO.H1/185/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 12TH
MARCH 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAME FOSU GYEABOUR FOR THE DEFENDANT/ APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>CORAM:<o:p></o:p>MARFUL-SAU JA (PRESIDING), AGNES DORDZIE JA, MARGARET
WELBOURNE JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU, JA: -
The plaintiff who is the respondent in this appeal commenced this action as the
head of the family of one Sardis Noa Adjeitey. She was also the daughter,
customary successor and heir of the said Sardis Noa Adjeitey and as such
claimed to be entitled to the beneficial enjoyment and control of the land the
subject matter of this case. The land in dispute, which was well described in
the writ of summons, measured according to the respondent approximately 33.06
acres situate at Barchona station, North Teshie. The action was originally
brought against two defendants, namely Numo Adjei Kwanko II as the first
defendant and Nii Nortey Adjeifio as the second defendant. By the writ the
respondent claimed the following reliefs:- <o:p></o:p>1.
Declaration of title to the land which measured approximately 33.06 acres and
more described in the writ of summons.<o:p></o:p>2.
Injunction to restrain the defendants their agents and servants from interfering
with the said land in particular by selling or developing or trespassing on any
portion of same.<o:p></o:p>3.An
order that the defendants do forthwith pull down, demolish and remove all and
any structures erected on the land whether by themselves or by their servants
or agents or otherwise without the prior knowledge and consent of the
plaintiff.<o:p></o:p>From
the record of appeal the two defendants disputed the claims of the respondent
and each separately filed a statement of defence and a counterclaim. The record
however showed further that the second defendant, Nii Nortey Adeifio was
non-suited and his name was struck out as a party on the 22nd
February 2005. The respondent’s action was thus contested by the first
defendant Numo Adjei Kwanko II who is the appellant in this appeal. It is also
important to state that even though the respondent issued the writ in her own
name, the writ was endorsed to the effect that she was suing per her lawful
attorneys Samson Okai Adjeitey and John Allen. During the pendency of the case
the original respondent Vicentia Mensah died and she was substituted by
Beatrice Tsotso Adjeitey. Before her death however Vincentia Mensah revoked the
earlier Power of Attorney and appointed two new attorneys, namely Boniface
Lumor and John Allen to act on her behalf.<o:p></o:p>The
case proceeded to trial and at the end of the hearing the trial court entered
judgment for the respondent on her claims. The appellant aggrieved by the said
judgment has thus appealed to this court praying that the judgment entered
against him on the 15th February 2010 be set aside. The notice of
appeal had the following grounds:-<o:p></o:p>a.
That the judgment was irregularly delivered.<o:p></o:p>b.
That the trial Judge erred in failing to hold that plaintiff lacked capacity to
maintain this action due to irregular and incompetent power of attorneys of
plaintiff attorneys.<o:p></o:p>c.
The trial judge erred in failing to hold that plaintiff’s predecessor’s grant
is void as at the time of the alleged grant Teshie land had already been shared
among the five (5) quarters of Teshie with each quarter entitled to grant its
quarter land only.<o:p></o:p>d.
The trial Judge erred in failing to hold that plaintiff could not positively
describe the land she claims and therefore not entitled to the relief of
declaration of title and injunction.<o:p></o:p>e.
The judgment is against the weight of evidence.<o:p></o:p>I shall
now address the grounds argued by counsel for appellants in his written
submission. The first ground is that the judgment was irregularly delivered.
The compliant of the appellant is that the trial judge delivered the judgment
without his counsel’s written address and also that the appellant was not
notified of the date for the judgment. From the record of appeal the last date
the case was called before judgment was delivered was on the 16th
November 2009. The courts notes for the day at page 485 of the record read as
follows:-<o:p></o:p>‘’ Parties Present<o:p></o:p>Alfred Nii Adjin Mensah
for Kwame Fosu Gyeabour for the defendant.<o:p></o:p>Robert Gardiner for the
Plaintiff Absent<o:p></o:p>